Gardiner v. McDonough
| Docket Number | 22-4268 |
| Decision Date | 14 September 2023 |
| Parties | Donald R. Gardiner, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee |
| Court | United States Court of Appeals For Veterans Claims |
Note Pursuant to U.S. Vet.App. R. 30(a), this action may not be cited as precedent.
Glenn R. Bergmann, Esq. VA General Counsel
Before MEREDITH, Judge.
The appellant, Donald R. Gardiner, through counsel appeals a May 24, 2022, Board of Veterans' Appeals (Board) decision that denied entitlement to disability compensation for bilateral hearing loss. Record (R.) at 4-13. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board's decision and remand the matter for further proceedings consistent with this decision.
The appellant served on active duty in the U.S. Air Force from January 1960 to December 1963. R. at 379. His entrance examination report reveals that his ears were clinically evaluated as normal and includes right and left ear whispered voice test results of 15/15. R. at 373-74. At separation from service in December 1963, the examiner found the appellant's threshold measurements in each ear to be -10 decibels (dB) at 500 Hertz (Hz), 1000 Hz, and 2000 Hz; -5 dB at 3000 Hz and 4000 Hz; and 0 dB at 6000 Hz. R. at 364. Additionally, in his separation report of medical history, the appellant denied having ear trouble and reported that he was in good health. R. at 365.
In January 2021, the appellant filed a claim for disability benefits for hearing loss and tinnitus. R. at 464-65, 466-70. He asserted that he had worked in a small, enclosed communications room as a radio relay equipment repairman during service and that the daily, constant, high-pitched whine of the high-frequency transmitters caused him to lose the ability to hear high-pitched sounds. R. at 464-65. He underwent a VA audiology examination in March 2021; the examiner diagnosed bilateral sensorineural hearing loss and opined that the condition is not related to service. R. at 282-92. The examiner explained that the appellant had normal hearing upon entrance to and separation from service, "with no evidence of significant positive threshold shifts." R. at 286. The examiner also stated that, although the appellant's military occupational specialty (MOS) had "a moderate probability of hazardous noise exposure, noise exposure alone is not sufficient to support a nexus between the [appellant's] hearing loss and military service." Id. However, the examiner also diagnosed bilateral tinnitus and opined that the condition is related to service. R. at 287-88. In that regard, the examiner noted that the appellant reported its onset during service, that the symptoms of tinnitus are capable of lay observation, and that the appellant denied exposure to occupational or recreational noise after service. R. at 288. The examiner also cited an Institute of Medicine (IOM) report titled Noise and Military Service - Implications for Hearing Loss and Tinnitus, finding that "[t]innitus due to noise exposure or acoustic trauma is known to have a noticeable onset immediately or soon following the incident." Id.
A VA regional office (RO), in April 2021, denied entitlement to benefits for bilateral hearing loss. R. at 258-62. The appellant filed a supplemental claim in October 2021, asserting that he believed his hearing loss was caused by something other than age given that he had had hearing loss for "some time." R. at 153; see R. at 154-55. In January 2022, the RO continued the denial of benefits for bilateral hearing loss. R. at 121-23. The appellant requested to have his claim considered under the higher-level review option of the Appeals Modernization Act,[1] and the RO subsequently issued a higher-level review decision, again denying the claim. R. at 61-63, 105-07.
The appellant filed a Notice of Disagreement, requesting direct review by the Board, and he checked the box that reflects: "I do not want a Board hearing, and will not submit any additional evidence in support of my appeal." R. at 50. However, in May 2022, the appellant's representative submitted an informal hearing presentation (IHP), asserting that the March 2021 VA examiner's negative nexus opinion was inadequate, and questioning the examiner's competence. R. at 33-39. In support of those arguments, the representative argued that the examiner relied on an outdated IOM report, and the representative discussed several medical studies related to delayed-onset hearing loss. R. at 37-39.
In the May 2022 decision on appeal, the Board denied entitlement to disability compensation for bilateral hearing loss. R. at 4-13. This appeal followed.
The appellant argues that the March 2021 VA examiner's opinion is inadequate because the examiner relied on evidence of the appellant's normal hearing at the time of separation from service, which is contrary to the Court's holding in Hensley v. Brown, 5 Vet.App. 155, 157 (1993), and did not explain why the appellant's normal hearing was dispositive to her opinion; the examiner did not explain why the lack of a puretone threshold shift during service was relevant; and the examiner did not address the lack of postservice noise exposure or the appellant's statements. Appellant's Brief (Br.) at 9-11; Reply Br. at 1-4. He also avers that the Board provided inadequate reasons or bases for its decision because it failed to address the deficiencies in the March 2021 VA examiner's opinion, and the Board improperly rejected his representative's May 2022 arguments that the VA medical opinion was inadequate. Appellant's Br. at 14-15, 19-21; Reply Br. at 5-6. As to the latter, the appellant argues that it is unclear whether the Board reviewed the claim under the direct review docket given that the Board discussed the articles the appellant described in his May 2022 submission. Appellant's Br. at 19. But assuming that the Board considered that evidence on the merits, the appellant challenges the Board's assessment of it. Appellant's Br. at 20; Reply Br. at 11-13. Last, he asserts that the Board provided inadequate reasons or bases for finding him to be not credible as to his reports of having hearing loss during and after service. Appellant's Br. at 16-18; Reply Br. at 6-11.
The Secretary generally disputes these arguments and urges the Court to affirm the Board's decision. Secretary's Br. at 6-20. Notably, regarding the May 2022 correspondence submitted by the appellant's representative, the Secretary contends that, because the "[a]ppellant did not submit additional evidence, but [rather submitted] additional arguments through his [representative]," the Board properly considered the arguments and "clearly reviewed this case under the direct review docket." Secretary's Br. at 17. The Secretary then avers that the Board "assessed the probative value" of the studies and "found that they are not sufficient to make the VA medical opinion inadequate." Id. at 18.
"Under the AMA, a claimant who is dissatisfied with an initial [agency of original jurisdiction (AOJ)] decision has several options for administrative review, and the option chosen dictates the scope of the evidentiary record to be reviewed by the Board." Aviles-Rivera v. McDonough, 35 Vet.App. 268, 274-75 (2022). If a claimant chooses to appeal a higher-level review decision to the Board and selects the direct review docket, the evidentiary record before the Board is limited to the evidence of record at the time of the AOJ decision on appeal. Id. at 275; see 38 U.S.C. § 7113(a); 38 C.F.R. § 20.301 (2023). The Board is required to include a general statement informing the claimant whether any evidence was received during a time not permitted by section 7113 and the options available to the claimant to have that evidence reviewed by VA. Aviles-Rivera, 35 Vet.App. at 278; see 38 U.S.C. § 7104(d)(2); 38 C.F.R. § 20.801(b)(3) (2023); see also Cook v. McDonough, 36 Vet.App. 175, 190 (2023).
In the decision on appeal, the Board acknowledged that, pursuant to § 20.301, it could consider only evidence of record at the time of the January 2022 rating decision. R. at 6. In denying entitlement to benefits for bilateral hearing loss, the Board ultimately concluded that the evidence persuasively weighs against finding that the condition began during or is otherwise related to service. R. at 7-10. Specifically, the Board found that the only probative evidence regarding the etiology of the condition is the March 2021 VA examiner's medical opinion. R. at 10. The Board addressed the appellant's May 2022 "arguments and general treatise evidence" provided to contest the adequacy of the VA examiner's opinion, but the Board found that they were not persuasive and did not "overturn" an IOM report, which indicates that there is insufficient information to establish delayed-onset hearing loss in humans. R. at 9; see R. at 9-10. Moreover, the Board found that the VA "examiner was trained in audiological, medical, and scientific matters and applied that knowledge to the specific facts of this case." R. at 10.
The Court agrees with the appellant that the Board did not provide a statement that complies with 38 U.S.C. § 7104(d)(2) and 38 C.F.R. § 20.801(b)(3). In that regard the parties agree that the appellant selected the direct review docket at the Board, which the Board acknowledged limited its review to evidence in the record at the time of the January 2022 AOJ decision. R. at 6, 50; see Appellant's Br. at 19; Secretary's Br. at 17. However, contrary to the Secretary's assertion...
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